CBI vs Kolkata Police: Legal and Constitutional Issues Before SC

On Monday, 4 February, the CBI will be approaching the Supreme Court of India at 10:30 am for an urgent hearing regarding the ongoing tussle between the investigating agency and the West Bengal government.

The situation in Kolkata, where CBI officials, who went to question Police Commissioner Rajeev Kumar regarding the Saradha chit fund scam, were detained by the Kolkata police (before eventually being released), is entirely unprecedented.

West Bengal Chief Minister Mamata Banerjee has come out in support of the commissioner and started a dharna, which is fast gathering support from opposition parties. The Centre has deployed CRPF personnel at the Kolkata office of the CBI. There are also claims that the Central Government has asked the Governor of West Bengal for a report, and that Governor Keshari Nath Tripathi summoned the chief secretary, home secretary and the DGP, prompting speculation that the Modi government may intend to impose President’s Rule in the state.

Here’s what we know so far, and what the Supreme Court will have to consider when looking at this matter.

CBI vs Kolkata Police: CBI to Approach Supreme Court on Monday

Did CBI Have to Take Consent of West Bengal Government to Operate?

One of the first questions asked the moment this crisis arose, was whether the CBI had the ability to operate in the West Bengal in the first place. This is because the Trinamool Congress government had in November 2018 revoked the general authorisation provided to the CBI and other agencies under the Delhi Special Police Establishment Act 1946 (DSPE Act).

Requirement of State Govt Consent for CBI to Operate

Police and public order are ‘State Subjects’ in the Constitution, ie, state governments run police forces in their respective states and the Centre cannot interfere. The CBI, however, is an agency that was created by the DSPE Act, a Central law. As a result, it can only operate in any other state if it has the consent of the relevant state government (Section 6, DSPE Act).

Since the West Bengal government withdrew their general authorisation, this means that the CBI has to get permission from them on a case-to-case basis whenever it wants to do anything in the state. This is likely to be one of the arguments raised by the West Bengal legal team in the Supreme Court when defending the actions of the Kolkata Police — they will no doubt argue that the CBI never took permission before going to Rajeev Kumar’s to question him.

Mamata at Kolkata Top Cop’s House After Police Detains CBI Team

CBI Counter-Argument: Supreme Court’s 2014 Judgment

However, the CBI has a strong counter-argument on this issue. On 9 May 2014, the Supreme Court itself had passed a judgment directing the CBI to investigate the Saradha chit fund scam, after concerns had emerged over the operation of the state government-appointed SIT, which was headed by Rajeev Kumar.

Though the apex court made no findings about the conduct of Kumar and the SIT, it decided that it was appropriate for the investigation to be transferred to the CBI. The court also expressly noted in para 36 of the judgment that:

The CBI, who will likely be represented by Solicitor General Tushar Mehta, will certainly use this judgment to justify their actions, and challenge the Kolkata Police’s interference. Interim director Nageshwar Rao has already indicated as much in his comments to the press.

Who is Kolkata Top Cop Rajeev Kumar And Why is the CBI After Him?

It is difficult to see how the West Bengal government (who will reportedly be represented by senior advocate and Congress leader Abhishek Manu Singhvi) will be able to argue around this. One possible argument could be that at the time the judgment was passed, the general authorisation for the CBI was still in force, but now that it has been revoked, the CBI has to get permission every time it wants to operate in the state, despite the 2014 directions of the SC.

However, this argument is unlikely to succeed because of another Supreme Court judgment in 2010 in State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal. In this judgment, a Constitution Bench of the apex court had considered whether it was a violation of the federal structure of the Constitution for a high court or the SC to order an investigation by the CBI without the consent of a state government.

This was rejected on the basis that such an order would be under the constitutional courts’ power of judicial review, which cannot be restricted by any legislation. As a result, the requirement of state governments to consent to a CBI investigation under Section 6 of the DSPE Act does not apply when the Supreme Court or a high court transfers an investigation to the CBI.

Interestingly, current Attorney-General KK Venugopal had represented the State of West Bengal in that case, arguing that Section 6 of the DSPE Act meant a state government’s consent was necessary, even when the higher judiciary ordered the case to be transferred.

Does the CBI Need a Warrant to Enter Rajeev Kumar’s Home and Question Him?

A better line of argument for the West Bengal government would be to focus on a different procedural violation by the CBI. Chief Minister Mamata Banerjee and a Trinamool Congress leader Derek O’Brien have publicly stated that the CBI officers who turned up at Rajeev Kumar’s house did not have a warrant to do so.

Abhishek Manu Singhvi has claimed that the CBI only had a notice under Section 160 of the Code of Criminal Procedure with them when they went to Kumar’s house. A notice under this section is a document requiring a person to attend an investigation, issued by an investigatory authority. Kumar reportedly failed to respond to these notices.

There are only limited conditions in which an investigating officer can enter a person’s home without a warrant, for example if any undue delay would make it impossible to recover the relevant evidence (Section 165 of the CrPC). Unless the CBI can show such grounds, the lack of a warrant may be one of the key grounds on which the West Bengal government will be able to defend the actions of the Kolkata Police.

It is not entirely clear yet which high court judgment Singhvi has referred to in his tweets, though this will no doubt be significant in the court hearings.

What Led To Mamata’s Unprecedented Dharna & #CBIVsKolkataPolice

Are There Grounds for Imposition of President’s Rule in West Bengal?

Regardless of whether or not the CBI had the authority to operate in West Bengal, or whether or not they had a warrant, the actions of the Kolkata Police may not have been entirely kosher. The Kolkata Police officers didn’t just stop the CBI officers from entering Rajeev Kumar’s house, they also detained several of them, and images have emerged of them being forced into police vehicles.

Subsequently, the CRPF were deployed around two CBI offices in Kolkata after the CBI asked for security arrangements. Kolkata Police forces had reportedly been depolyed around those offices in large numbers before being withdrawn.

President’s Rule can be imposed in a state under Article 356 of the Constitution of India, when the governor certifies that there has been a failure of the constitutional machinery in that state. In the SR Bommai case, the Supreme Court interpreted this to include the following:

It is difficult to say that any of these conditions have been met just yet in West Bengal, especially conditions 1, 2, 4 or 5. Even though what has happened could possibly fall under condition 3, given the corruption angle to the Saradha chit fund case and the questionable actions of the Kolkata Police, President’s Rule is to be used sparingly, and only as a last resort (according to the Sarkaria Commission and the Supreme Court).

This may change after the Supreme Court’s hearing on Monday, in the event the judges direct the West Bengal authorities to cooperate with the CBI, and then Mamata Banerjee prevents this from happening. Once the court clarifies things, the Centre could also issue a direction to the state government in an exercise of their executive power (since the Centre has powers of supervision over the CBI) to allow the CBI to function.

Thus, even though the apex court is unlikely to hear arguments on the issue of President’s Rule on Monday, its decision could play a part in whether or not it does eventually get imposed.